The Volokh Conspiracy

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Court Strikes Down Ban on Gun Acquisition by People Under Felony Indictment

An indictment for a crime, the court stresses, is very different from a conviction of the crime.


From yesterday's U.S. v. Quiroz, Judge David Counts (W.D. Tex.), discussing 18 U.S.C. § 922(n); part of the argument had to do with the lack of historical precedents for the law, but I thought readers would especially interested in this passage:

This Court is skeptical that the Government here, or in any other court, could defend § 922(n)'s constitutionality. Not only does the historical record lack the clear evidence needed to justify this regulation, § 922(n) evokes constitutional scrutiny in other ways….

The nature of grand jury proceedings [which are the ways that an indictment is obtained in the federal system -EV] is one such area that casts a shadow of constitutional doubt on § 922(n). Some feel that a grand jury could indict a [burrito] if asked to do so. [That appears to be a Texification of a New York Chief Judge's famous quote involving a "ham sandwich." -EV] The freewheeling nature of such proceedings stems from the Supreme Court holding that (1) the rules of evidence don't apply, (2) evidence barred by the Fourth Amendment's exclusionary rule may be heard, and (3) the grand jury may rely on evidence obtained in violation of a defendant's Fifth Amendment privilege against self-incrimination. Simply put, "[a] grand jury investigation is not an adversarial process." …

The Government argues here that it has always been able "to impose substantial liberty restrictions on indicted defendants." To support that claim, the Government lists detentions or conditions of pretrial release as examples. Why the Government believes those examples support its argument is unclear; detention hearings have substantial procedural safeguards. For one thing, at a detention hearing, the defendant may request the presence of counsel; testify and present witnesses; proffer evidence; and cross-examine other witnesses appearing at the hearing. Grand jury proceedings have none of these safeguards. Detention hearings also occur at a different stage in the proceeding—often after indictment. And even if restricting a defendant's right to possess a firearm as a condition of pretrial release is constitutional—an issue which this Court does not consider here—that doesn't also make § 922(n)'s restrictions in the indictment stage constitutional.

{Whether this Nation has a history of disarming felons is arguably unclear—it certainly isn't clearly "longstanding." And what's even more unclear—and still unproven—is a historical justification for disarming those indicted, but not yet convicted, of any crime.}

The court also discusses an interesting historical means of dealing with people who hadn't been convicted of a crime, but who were viewed as potentially dangerous:

In another analogy closer to § 922(n), the Government argues that Massachusetts' mid-19th century surety laws outlined in Bruen are a historical example of restricting gun rights for those accused but not convicted of wrongdoing. The 1795 surety laws required a person "reasonably likely to 'breach the peace,' and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm." The Government also claims that those surety statutes burdened Second Amendment rights "more directly" than § 922(n)'s prohibitions. Yet this argument ignores the rest of Justice Thomas's analysis.

Justice Thomas dismisses the contention that surety laws were a severe restraint as having "little support in the historical record." Surety laws were "not meant as any degree of punishment." And there's little evidence that such laws were regularly enforced. Indeed, the handful of cases highlighted by Justice Thomas from Massachusetts and the District of Columbia all involved "black defendants who may have been targeted for selective or pretextual enforcement."

The Government also argues that the surety laws provide an imperfect but similar analogue to § 922(n). But not only do Massachusetts' mid-19th century surety laws fail to support the Government, they actively cut against the Government's assertions. In Bruen, Justice Thomas highlighted the "straightforward" historical method employed in Heller: "If earlier generations addressed [a general societal problem that has persisted since the 18th century], but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional."

Much like § 922(n), Massachusetts' surety laws addressed the societal fear that those accused—like those under indictment—would "make an unlawful use of [their firearm]." Yet surety laws addressed that fear through means "materially different" than § 922(n). Rather than completely restrict the accused's constitutional right, surety laws permitted the accused to prove a special self-defense need. And if they couldn't, the accused needed only to post a money bond for no more than six months to keep their firearms.

In contrast, § 922(n) restricts a person's right to receive a firearm indefinitely after indictment by a grand jury—which is not an adversarial proceeding. And as the Government admits, an "indictee cannot overcome § 922(n)'s restriction by posting a bond." Thus, the existence of Massachusetts' surety laws—addressing a general societal problem through materially different means—serves only as more evidence that § 922(n) departs from this Nation's historical tradition of firearm regulation….

The government has already appealed; it will be interesting to see what the Fifth Circuit will do.